vs. ) CASE NO. 95-1515
Respondent. )
A hearing was held in this case in Largo, Florida on June 1, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For Petitioner: Keith B. Martin, Esquire
For Respondent: Robert F. McKee, Esquire
The issue for consideration in this case is whether the School Board should cancel the Respondent's Professional Service Contract and terminate his position due to low enrollment and reduction in his program.
By letter dated March 13, 1995, Dr. J. Howard Hinesley, the Superintendent of Schools for Pinellas County, advised the Respondent that he would recommend to the School Board the cancellation of Respondent's Professional Service Contract and termination of his position with the Board for the 1995 - 1996 school year due to program reduction. Thereafter, through counsel, Respondent requested an administrative hearing and this hearing followed. At the hearing, the Board presented the testimony of Dr. Warren Laux, Director of PTEC, St.
Petersburg, and Dr. Robert C. Graeff, the Pinellas County Schools' Director of Instructional Personnel. Respondent testified in his own behalf and presented the testimony of Jade Moore, Executive Director of the Pinellas County Teachers' Association. Petitioner introduced Petitioner's Exhibit 1. Respondent did not introduce any exhibits.
A transcript of the proceeding was furnished, and subsequent to the hearing and receipt of the transcript both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the issue herein, the Pinellas County School Board, (Board), operated the public instructional program in Pinellas County, including preschool, elementary and secondary education, and adult technical and vocational training programs. The Respondent, Frederick Usher, was a teacher at PTEC, St. Petersburg, instructing in the organization's culinary arts program. Respondent holds a professional services contract with the Board for his services as an instructor.
At PTEC, St. Petersburg, the culinary arts program currently consists of three teachers, including the Respondent. The program offers three basic areas of instruction. The first is basic cooking. The second is baking, and the third, where Respondent teaches, is advanced chef. In this area, as well as all other subject matters taught at PTEC, St. Petersburg, a desired pupil/teacher ratio has been established. For culinary arts this ratio is 15 students to 1 teacher. At the present time, there are 16 adults and 14 part- time high school students enrolled in PTEC, St. Petersburg's culinary arts program. Twelve adults are full-time students, (6 hours per day). The remaining 4 adults and the 14 school students are all part time. Even if all adults, and the high school students were full-time, the total of 30 students would still be well below the desired 15 - 1 ratio.
The culinary arts program has been in existence at PTEC, St. Petersburg for at least three years, Over that period, school records indicate 211 adult enrollments and 28 graduates. The student enrollment in the culinary arts program, however, has been steadily declining even though numerous efforts have been made to increase the enrollment. Among these are public relations efforts by the Board, and encouragement to instructors to recruit students for the program. This is a recognized and accepted practice in vocational adult education.
Other efforts have been made to try to keep all three teachers on board, including the reduction of the teacher contract term from 235 days per year to 196 days per year. This was an effort to reduce costs so that all three current instructors could be retained. Respondent is the most junior of the three instructors in the culinary arts program at PTEC, St Petersburg.
Over a year ago, members of the Board staff spoke with all teachers about the situation, and in an effort to expand the program, contacted the Director of PTEC, Clearwater to see if a culinary arts program could be established in the Clearwater prison, within the area served by PTEC, Clearwater. It was anticipated that if this program could be started, an instructor from PTEC, St. Petersburg could fill the position.
When the matter was presented to the Respondent, though he was not particularly interested in it, he went to the prison on two separate occasions. He examined the facility and found it to be extremely dirty and in poor condition, and he also concluded that it would take a significant amount of money and effort to provide the equipment necessary to operate an effective program. To counter those objections, the Board produced evidence that the prison authorities had agreed to clean up and refurbish the kitchen area, and the Board agreed to provide whatever equipment was necessary to allow the
instructor to operate an effective program. This would include stoves, refrigerators, cutting tables, sinks and the like.
The state of repair of the facility was not the Respondent's only objection, however. Granted there were, and are, other instructional programs at the prison, the majority of them are conducted outside the secure area of the prison proper in separate buildings. In contrast, the kitchen is within the prison proper, and access thereto requires passage through three locked areas. Respondent also discussed the situation with several of the other instructors at the prison who, while they might have been satisfied with the conditions under which they taught, indicated to Respondent that the conditions he would face inside the prison would not be pleasant. On the basis of this information, and based on his genuine fear for his safety should he accept a position inside the prison walls, Respondent declined the transfer.
According to Dr. Laux, the Director of PTEC, St. Petersburg, the culinary arts program at that institution has been running in the red for the past five years, and it was determined to be necessary to close down the least active of the courses. This happened to the advanced chef program taught by the Respondent. Another factor which Respondent contends impacts on the need to close down the program is that the Board agreed to the opening of a MacDonald's restaurant in the PTEC, St. Petersburg facility where the culinary arts curriculum was carried out. According to Respondent, this resulted in a decline in the number of students interested in taking advanced chef courses.
Dr. Laux admits that when the decision was made to terminate the Respondent's employment, he was not offered any retraining so that he could remain in a teaching position within the County. Respondent is assumed qualified to teach all of the three culinary arts courses, but Dr. Laux does not know whether the other two instructors are qualified to teach the advanced chef course. In any event, the advanced chef program is to be closed for lack of interest.
The desired student/teacher ratio of 15 - 1 discussed previously is not a hard and fast rule. As of the last week in May, 1995, several other areas at PTEC, St. Petersburg fell below the desired rate. For example, the air conditioning and refrigeration course is at a ratio of 8.9 students to 1 teacher. The auto body repair program is at 14 - 1; auto mechanical repair,
10.2 - 1; auto painting, 11.8 - 1; precision machinery, 7.6 - 1; printing, 11.6
- 1; and optical technician, 14.6 - 1. As of the same period, the ratio in the culinary arts program, including part-time students, was 11.7 - 1.
Before making the decision to close down the advanced chef program because of a lack of interest, Board officials had to take a look at the need for the program in the community. This is done in the case of every potential closure. The State of Florida requires a 70 percent placement rate for graduates of the vocational/technical schools in each program. Officials also look at the production rate of each program, and culinary arts was below the state standard in that area. A further area for consideration is the completion rate, and, again, 29 graduates out of an enrollment of over 200 students in the culinary arts program is not an acceptable record.
The Board has closed other programs in the past because of low enrollment. Included in these are fashion design, hotel/motel management, drapery and interior design, and in several cases, the incumbent instructor was
placed in another job within the school system. In many cases, however, the displaced instructor was not given alternate placement and, quite often, retired.
The Board admits it could continue to run the program at a loss with three teachers, including the Respondent. However, after a three year analysis, the Board has determined to reduce this program. Various programs have varying funding criteria. Some are high value programs, such as the air conditioning and carpentry programs, and these get a higher funding to make up for lower enrollment. The lack of interest in culinary arts, in a time of limited program funding, requires a serious and critical appraisal of the need for the program. Here, the Board determined that the advanced chef portion of the culinary arts program could and should be curtailed because of a lack of enrollment.
This decision was not taken lightly. On February 22, 1995, Dr. Ross, the Board's Assistant Superintendent for Career, Technical and Adult Education, advised Dr. Graeff, the Board's Director of Instructional Personnel, that there was a need to reduce the culinary arts program at PTEC, St. Petersburg by one teacher due to low enrollment. When he received this information, Dr. Graeff first checked those who were in the program and looked at the seniority and certification information. He then looked to see if there was any one in the culinary arts program, county-wide, under an annual contract and there were none. Therefore, since the Respondent was the teacher with the least seniority at PTEC, St. Petersburg, he was identified as the one whose contract was to be terminated. Admittedly, there were more junior teachers at other schools under Professional Services Contracts, but it is the Board's unwritten policy not to allow bumping of more junior personnel at other schools, except for teachers holding annual contracts. This policy was implemented to stop the chain effect of bumping. It also, in effect, emasculates the seniority system.
The contract between the Board and the Union requires the Union be advised of any situation requiring a reduction in force. In this case, the Board claims it first contacted the union and advised of the situation by telephone and later on engaged in a face to face meeting with Union representatives at which potential placements for the Respondent were discussed. In that regard, it appears that at that time, there were no annual contract teachers who could be bumped, and there were no other teaching positions in the county for which Respondent was qualified. The parties also discussed possible support service jobs for Respondent, and the Board representative suggested that the union representative contact the pertinent School Board official to inquire as to what jobs were available.
The Respondent's teaching certificate is based on his experience, not his education. The rules of the State Board of Education require that a teacher in vocational/technical courses have at least 6 years experience to be certified. Though certified in the field of culinary arts, the Respondent does not have the requisite work or educational background in another field to support certification in another field. To be sure, Respondent could go back to school and get his degree, and be certified that way, and the Board has, in the past, granted instructors in a position similar to that of the Respondent, up to
2 years paid sabbatical to go back to school. However, the issue here is not qualification or certification, but a lack of enrollment. The Respondent is qualified for his job. The required students are not there, however.
Respondent claims he has in excess of 135 credit hours in undergraduate courses and approximately 45 hours in graduate work credit. Notwithstanding this, the Respondent has neither a Bachelor's degree nor a
Master's degree. An evaluation of his academic credentials, conducted by Dr. Graeff, indicated that though Respondent has an Associate degree, many of the courses which went toward the granting of that degree would not apply to a Bachelor's degree in education. As Dr. Graeff saw it, 4 courses which Respondent took would be acceptable and 8 others might be acceptable, but the remaining courses probably would not be acceptable toward a Bachelor's degree. Those courses in food service would not go toward a teaching degree. On the other hand, those in English, literature and music would. Those in math and accounting, as well as other business subjects, might. In substance Dr. Graeff feels that Respondent would have no more than 30 acceptable credits toward a 120 credit requirement for a Bachelor's degree in an educational field. Many other courses, however, might be creditable toward a degree in another field. In that regard, a graduate holding a degree in a non-educational field, may nonetheless teach in the area of specialty, but would have to take the educational courses required for a degree in education within two years of being hired.
Respondent had been employed by the Pinellas County School Board for
13 years, all in the culinary arts field. He has taught all the courses offered on one occasion or another. During his 13 years, however, only he taught the advanced chef segment. After Respondent looked into the possibility of teaching at the prison as an alternative to his current position, and declined to accept that offer, he was called to a meeting with Dr. Laux at which he got the impression that the Board officials were very disappointed he would not take that position. Nonetheless, he was not threatened, and though he received sympathy from Board officials, he has been offered no comparable position. Any position he might have been offered, such as working in a school cafeteria, would be compensated with less pay and with less prestige.
In the 21 year recollection of Mr. Moore, the Union Executive Director, only two cases come to mind where certified teachers were laid off, not for cause. This took place in the 1980's. One of those individuals taught welding and the other taught air conditioning repair. Both were at the lowest seniority level. In 1990, because of a potential budget deficit, there was some consideration of a lay off again, but as a result of the joint efforts of the Board and the Union, this was avoided.
In the past, according to Mr. Moore, teachers identified for layoff have been retrained to allow them to continue employment. Some were given summer work to help pay for their certification courses. In one case, a vocational teacher was allowed to go to school for two years under a paid sabbatical program so that he could be retrained into a field useful in the K -
12 environment.
As was noted by Dr. Graeff, the union contract calls for the Board to consult with the Union to see how a teacher identified for reduction in force can be utilized within the system as an alternative. Notwithstanding that representative's contention that this was done, according to Mr. Moore, it was not done. In light of all the evidence, it is found that a conference was held at which Respondent's case, among other matters, was discussed. The Board official's suggestion that the union representative seek out other jobs for the Respondent is indication of the lack of cooperative or sympathetic attitude by Board personnel, however, and is not acceptable.
Consistent with the issue of additional education, a teacher can be allowed to teach outside his or her field of certification under a professional services contract, provided that the teacher takes 6 hours per year of course work leading toward certification in the field in which the teacher is teaching.
The Respondent could do this, but this option was not offered to him. In that regard, Mr. Moore admits he does not know in what area the Respondent could teach under this type of program.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Board seeks to terminate Mr. Usher's professional services contract alleging the low enrollment in the course he taught has made it necessary to reduce staff. The burden is on the Board to establish, by a preponderance of the evidence, that it has complied with the applicable provisions of the Florida Statutes and the collective bargaining agreement it has entered into with the Union which relate to terminations not for cause.
Section 231.36(5), Florida Statutes, provides that reductions in force among Board instructional personnel employed under continuing or professional services contracts are to be effected in accordance with the terms of the collective bargaining agreement between the Board and the Union. Under the provisions of Article 22 of that agreement, when it appears to be necessary to reduce personnel, the Board agrees first to take whatever steps are necessary to assign personnel to appropriate positions for which they are qualified within the district and, if it becomes impossible to retain all employees, the Board agrees to immediately meet with the union to arrange for an orderly method or reducing, retraining and recalling affected employees. The Board contends that such a meeting was held between Dr. Graeff, Dr. Ross and Ms. Vanderstek of the union. Mr. Moore, the union Executive Director, is not aware of this meeting.
There is no doubt that the culinary arts program, conducted by the Board as a part of its vocational education program at both campuses of PTEC, is suffering from declining enrollment and has fallen below the standards for complete retention. Specifically, there is a decided decline in those students in the advanced chef course taught by Respondent, and state standards require modification of the program. There are currently four instructors in the culinary arts program spread between the two campuses. Three, including Respondent, teach at PTEC, St. Petersburg, while the fourth, who happens to be junior to Respondent in seniority, teaches at PTEC, Clearwater.
The Board has articulated its unwritten, unofficial policy of not "bumping" personnel as its reason for not assigning Respondent to the Clearwater position for which he is qualified, and that this policy has at least the tacit approval of the union. There is also some indication the Board has taken the position that its offer to let Respondent develop a program at the Clearwater prison, a position he declined out of fear for his safety and his doubt that an effective program could be maintained in that location under existing conditions, constitutes adequate effort to attempt to place Respondent. This is just not so.
Mr. Moore, the Union Executive Director and the individual with whom Board consultation regarding this situation should have been conducted, denies any such consultation took place, notwithstanding the alleged meeting with Ms. Vanderstek. Had this been done, perhaps some alternative to the prison placement or termination could have been found. Such alternative could include retraining or placement out of field, though the Board contends there is no other program being offered at either campus in which Respondent could teach.
Somehow, this seems unlikely, especially in light of the fact that these are vocational, not academic subjects. Consequently, it cannot be said the Board has fully lived up to the terms of the union agreement and that Respondent should be terminated.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent, Frederick Usher's employment with the Pinellas County Schools, not be terminated due to low enrollment, and that if reduction in force is necessary, alternative approaches be genuinely considered, such as the use of seniority, retraining, or placement out of field.
RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995.
APPENDIX TO RECOMMENDED ORDER
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONER:
- 14. Accepted and incorporated herein.
1. - 5. Accepted and incorporated herein.
13. - 16. Accepted and incorporated herein.
17. & 18. Accepted.
19. - 21. Accepted.
Keith B. Martin, Esquire Pinellas County Schools
301 Fourth Street, S.W.
P.O. Box 2942
Robert F. McKee, Esquire
Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A.
1718 E. 7th Avenue, Suite 301
P.O. Box 75638
Dr. J. Howard Hinesley Superintendent
301 E. Fourth Street, S.W.
P.O. Box 2942
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
